We concur in the reversal of the judgment of the trial court, but we do not concur in everything stated in the original opinion, and therefore file this concurring opinion.
Appellee bank based its entire cause of action on its specific allegation that in 1911, the Exchange National Bank of Fort Worth conveyed to appellee, C. A. Wirt 355 1/4 acres of land, and as part payment therefor took ten notes in the sum of $367.50 each, payable one each year thereafter; that prior to February 16, 1918, appellee bank paid to said Fort Worth bank, for and at the request of Wirt, all of said vendor's lien notes, and that Wirt had from time to time renewed same until the 23d day of September, 1924, when same amounted to $7,115, for which Wirt had executed to appellee bank his note. It alleged that for the purpose of paying said $7,115 note to appellee bank, Wirt had on the 15th day of July, 1925, conveyed said land to J. R. Milam Company for the use and benefit of appellee bank, and it sought to recover the title and possession of said land from said J. R. Milam Company by reason thereof.
Among other defenses and pleas for affirmative relief, appellant J. R. Milam Company alleged that it paid to the Fort Worth bank the notes that had been given by Wirt to said bank for the land in controversy, and that the lien held by the Fort Worth bank to secure the payment of the vendor's lien notes had been by said bank, together with said notes, transferred to it, J. R. Milam Company, and that by reason thereof it was entitled to a first lien on said land and entitled to a foreclosure thereof for the amount of purchase money which it had paid to the Fort Worth bank.
Appellant contends that the answer of the jury to special issue No. 5, namely, that the $7,115 note held by appellee bank represented money used in the purchase of vendor's lien indebtedness against the land, was wholly without support; and it further contends that the findings of the jury do not support the judgment as entered by the trial court vesting title to the land in appellee bank clear of all liens. The evident theory of the trial court in submitting said issue and in entering judgment thereon was in line with the pleadings of appellee bank that the entire amount of said note represented money paid by the bank in taking up vendor's lien notes which Wirt had given as part of the purchase price for said land and that all of the land notes given by Wirt had been paid by the bank. The trial court, without any objection or exception by either party, submitted special issue No. 6, which asked the jury to determine whether appellant Milam Company acquired the transfer of the last eight notes of $277.75 each with funds which belonged to appellee bank. The jury failed to answer said issue. Appellee's bookkeeper testified that Wirt owed the bank on December 6, 1915, $3,050.90; that the only new money loaned by appellee bank to Wirt after said date was $210 on November 4, 1916, and $493.80 on January 9, 1917; that said two items, together with the original $3,050.90 and the accumulated interest thereon, amounted on September 23, 1924, to $7,115. On December 6, 1915, when Wirt owed appellee bank the $3,050.90, only four of the original $367.50 land notes had been paid, and Wirt testified without contradiction that he paid the first two of said notes. Said $3,050.90 note could not therefore have been entirely for purchase-money notes, and the finding of the jury as interpreted by the trial court that the entire note of $7,115 held by appellee bank represented money used by it to pay land notes given by Wirt is clearly unsupported by the evidence. On December 1, 1916, Wirt gave the Fort Worth bank ten notes for $277.75 each, payable in one to ten years thereafter, in extension and renewal of the last six of the original ten notes of $367.50 each. At the time of trial appellant had possession of the last eight of the ten renewal notes given by Wirt for $277.75 each. Its officers testified that appellant paid the Fort Worth bank for said eight notes. Each of them was regularly transferred by the Fort Worth bank to appellant. The third, fourth, and fifth notes of said series were each transferred about the time they became due, respectively, and the last five of said notes were transferred by the Fort Worth bank to appellant on December 3, 1923. On February 1, 1924, Wirt gave appellant a written renewal of said last eight notes.
Since the record shows that appellant had possession of the last eight notes for $277.75 each, and same had been regularly transferred to it by the Fort Worth bank, and since the trial court submitted to the jury the issue as to whether appellee bank's money was used to pay for said eight notes, the implied finding by the trial court that all of the land notes given by Wirt were paid by the bank and included in the $7,115 is erroneous, and the trial court was not authorized to enter a judgment on said implied finding, vesting the title to the land in appellee bank clear of all liens. The rule is well established that the trial court cannot enter judgment upon an implied finding to an issue submitted to *Page 484 the jury which was not answered, or enter judgment contrary to a finding by the jury.
Appellant complains of the action of the trial court in permitting appellee bank to offer in evidence a memorandum which its bookkeeper, Bridges, found in the archives of the bank attached to the Wirt note, purporting to be in the handwriting of Mr. Rob, a former employee of the bank, which memorandum stated: "Wirt says in 1924 he deeded to Milam Company, or C. A. Milam, 355 acres of land at around $21.00 per acre to satisfy this bank's note, for a consideration of $7,500.00." Appellant objected to said memorandum because it was hearsay and self-serving. We think these objections should have been sustained and said document excluded from the jury. The witness, Bridges, did not as a matter of fact know whether Wirt had made any statement to Mr. Rob. Mr. Rob himself could not, as against appellant, have testified that Wirt told him the purported facts contained in said written memorandum. Said statements, if made by Wirt, would have been clearly hearsay as well as self-serving.
For the reasons herein stated, we concur in the reversal of the judgment of the trial court.